Knowing the Body

2004 Final Web Report

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Bree Beery

December 15, 2004

IPGS ~ Final Paper

Anne Dalke and Gus Stadler

Gender Politics in the United States Criminal Justice System

Chapter Two of A Thwarted Patriarchy

The United States criminal justice system, an outwardly fair organization of integrity and justice, is a perfect example of a seemingly equal situation, which turns out to be anything but for women. The policies imposed in the criminal justice system affect men and women in extremely dissimilar manners. I plan to examine how gender intersects with the understanding of crime and the criminal justice system. Gender plays a significant role in understanding who commits what types of crimes, why they do so, who is most often victimized, and how the criminal justice system responds to these victims and offenders. In order to understand the current state of women and the way in which gender relates to crime and criminal justice, it is first necessary to provide a comprehensive analysis of the historical evolution of women in the criminal justice system and the affect that the different waves of feminism have had on policies and practices towards women in this system. I plan to argue that the criminal justice system is another form of patriarchal control, a sexist organization which creates conflict between the private sphere of a woman's life and the public. This control extends far beyond the just incarcerated women, it affects all women. Despite the fact that there have been changes to certain policies and prison regulations, though made with resistance, none of the changes have been for the better. By looking at past and present situations as well as the differing feminist perspectives on the justice system, I hope to offer ways and opinions on how to improve this system and allow women to equally balance their life in the public sphere as well as their life in the private sphere.

Before I begin, however, I would like to explain the reasons for which I had to write about this topic. I have always been very interested in criminal justice and criminology for no particular reason other than that it fascinated me. Criminology is the study of crime and is concerned with developing theories on what causes crime, whereas criminal justice focuses more on the processing of victims and offenders. Crime remains a constant problem in every society, no matter how civilized or uncivilized that country may be. Although, the criminal justice system does receive a lot of attention, the attention is focused more on the males in the system rather than the females. Since 1980 the number of women in state and federal prisons has increased at nearly double the rate for men. There are now nearly seven times as many women in state and federal prisons as in 1980, yet there is still a common misconception that the criminal behavior of females is not a serious problem. In fact when I first enrolled in the class I thought there would be a section about gender politics in the criminal justice system because it is an extremely important component in society, and I was disappointed to discover that there was no such section. I feel that this topic is one of importance because the policies and practices of the criminal justice affect all women, directly or indirectly, and is why I chose this subject over the many others.

In order to better comprehend the issues in which I will be examining, it is important to have an understanding of the difference between sex and gender, the role and definition of a 'patriarchal society', as well as a general background of feminism.

The differences between men and women are most often divided into two groupings: gender differences and sex differences. Gender differences are those that are ascribed by society that relate to expected social roles whereas sex differences are biological differences. Most of the differences recognized by society, between men and women, are gender differences that are not biologically determined. Unfortunately these socially constructed differences are entrenched largely in inequality. In fact most, if not all organizational structures, including the United States criminal justice system is gendered, meaning that they are rooted in discrimination between the sexes. More often than not, if an organization or any other analytical unit is "gendered," then gender is not simply an addition to ongoing processes that are gender neutral. Rather, a gendered organization is one in which control, identity, meaning actions, emotions, and advantages are patterned by distinguishing male and female, masculine and feminine. Legal cases have historically confused sex and gender differences, often ruling to the disadvantage of women based on the misconception that societal and cultural differences are "immutable." Legal dissertation has traditionally failed to differentiate sex differences from gender differences, viewing both as intrinsic and not acknowledging the role that society plays in propagating these gender inequalities.

Fundamental in this distinction between sex and gender are the notions of patriarchy and sexism. Sexism refers to the oppressive attitudes and behaviors directed at either sex; it is discrimination or prejudice based on gender. However, these discriminations, prejudices and negative behavior and attitudes based on sex and gender have been historically aimed at women. Patriarchy on the other hand refers to a social, legal and political climate that values male dominance and hierarchy. Central to the patriarchal ideology is the belief that women's nature is biologically, not culturally, determined. What many may identify as gender differences, such as the idea that women are natures and mothers, are often defined as sex differences by the patriarchy.

Although the modern day patriarchal social structure is not as powerful as it once was, the state still operates from a man's standpoint. The laws are consistent with men's experiences and viewpoints. Men are often the ones studied as non-gendered subjects, "In criminology, as in other disciplines, it is men, not women, who supply the essential (and therefore unexamined) 'standard case'. Men, themselves, are not compared with others to see what makes them specific and different." Patriarchy then remains as part of a defining quality of culture and society and thus criminology and criminal justice. This patriarchal oppression is causing many, feminists and otherwise to advocate for "feminist or woman's law" in order to "describe, explain and understand women's legal positions, especially for the purpose of improving women's positions in the law and society."
However, many believe that the criminal justice system is too deeply rooted in patriarchal presuppositions to permit any type of consequential changes for the better.

Understanding the distinction between sex and gender and how this distinction is carried out by a patriarchal society is important in enlightening society that most differences between men and women are societal, gendered based rather than biologically determined. Unfortunately these socially constructed differences are ingrained principally in unfairness towards woman, which means and proves that the criminal justice system as a 'gendered institution' is essentially one of inequality and oppression.

This notion of inequality and oppression then leads into the larger issue at hand, how the criminal justices system controls women through both the private and public spheres. The majority of feminist theorists argue that traditionally women have been betrothed to the private sphere in society. In fact many feminist criminologists and theorists argue that fleeing the home and escaping the sphere of domesticity, by engaging in criminal or illegal activities, in the end, only provides the public sphere of the state more power in matters of the private sphere. They believe that women, from their private stance, should stand up against and prevent the intrusiveness of the power of the state. On the other hand, some feel that if women disparage the state completely that they will only end up damaging themselves because the public and the private are inextricable linked. Within a culture that holds silence and subordination to be the stipulation of women's respect, women's speech and action have little influence in the public context. While the private is subsidiary to the public, it is by no means separate. These feminist theorists seem to be arguing that in linking the feminine to the private and setting it up in opposition to the public it will only create a situation whose outcome would be meaningless because it prevents women and men from viewing themselves as an interdependent social system with the private having perhaps a subordinate but no less of a stake in the whole.

Many of these issues are dealt with in the literature reflecting upon the theoretical aspects of feminist thought. Feminized politics seems to be almost at odds with women's traditional place in society and the patriarchal family as they define it. This is most evident in the literature which opposes the public to the private sphere where one notes an underlying disparagement for the importance of what women have given society in their long-established roles as wife and mother and ultimately administrator of all domestic duties. It is very clearly assumed that these roles are considered politically ineffectual and degraded in contrast to the male public realm. In the public versus private argument, the question is rarely asked, "what is wrong with society that it degrades these roles and does not recognize their importance to human society," but rather the question is, "what is wrong with society that it does not liberate women from the constraints of these roles to play a 'more important' part in public society?" These exact issues are what I will be dealing with in regards to Virginia Woolf and her feminist book, Three Guineas, a little bit later in my paper.

However, before I begin to discuss the ways in which the different waves of feminism have influenced the criminal justice system I feel that I should first address the question, "what is feminism?" Feminism is a theory which recognizes that gender inequalities exist in society and values change that enhances equality between the sexes. Feminism is by no means a new concept, in a sense feminism has always existed,
"Certainly, as long as women have been subordinated, they have resisted their subordination. Sometimes the resistance has been collective and conscious; at other times it has been solitary and only half conscious, as when women have sought escape from their socially prescribed roles through illness, drug and alcohol addiction and even madness."
This proves to be especially true in explaining why women commit crimes; they do so to escape the repression of the private sphere and gain freedom. There are five major forms of feminism: liberal, Marxist, socialist, radical, and postmodern. However, for the purpose of this essay I will solely be discussing feminism in terms of the waves in which it came in, starting with the first wave feminism of Virginia Woolf, then moving on to the second wave feminism, with which I will be describing using Enloe's work, and then ending with where feminism is today, which I consider to be the beginning of the third wave of feminism.

In preindustrial societies, women and men were subject to the same penalties, which consisted of burnings at the stake, hangings, whippings and worst of all public ridicule. However, despite the fact that the general punishments of men and women were similar, the reasons for which they were sentenced were greatly to women's disadvantage. Women were punished for the most minor offenses, such as fornication, adultery and even drunkenness. These 'moral' offenses were taken so seriously because they were public order offenses. Women were expected to stay in their sphere of domesticity, and if they stepped out of the private sphere into that of the public, they would be punished. What is ironic though is that public humiliation was a more common punishment for women than for men. For example, female convicts would have to confess their sins and crimes before they were hanged.

The first, and most active reform in the imprisonment of women arose in the late 19th century along with the rise of the first wave of feminism. The term, first wave feminism, refers to the first collaborative movement that worked for the reform of women's social and legal inequalities in the late nineteenth century. Although individual feminist such as Mary Wollstonecraft had already argued against the injustices suffered by women, it was not until the late 1800's in which actual reforms were made. The key concerns of first wave feminists were education, employment, the role of women in society and the plight of intelligent middle-class single women. They were not primarily concerned with the problems of working-class women, nor did they necessarily see themselves as feminists in the modern sense. Because they were not primarily concerned with the problems of working class women, they thus were not primarily concerned with the patriarchal injustices in the criminal justice system because most, if not all, of the women in the prison system were those of the working class. This is why the most active prison reform was conducted by wealthy, white women who often held stereotypical views of women's roles in society. With their influence, reformatories were created, with the goal of remolding, rather than punishing, women by encouraging "proper" gender roles.

However, Virginia Woolf, one of the leading pioneers in first wave feminism, offers in her book Three Guineas, solutions to help aid in the independence of women from the private sphere and gain access into the public sphere that men dominate. Although she mainly discusses the daughters of educated men, she addresses women in general. In Three Guineas, the speaker receives three separate requests for a guinea; one for a society promoting employment for professional women, one for a women's college building fund, and one to help prevent war. This book is an answer to these requests--and as Wolfe examines the three causes and points out that they are inseparably the same, she declares a new tactic of feminine purpose,
"She follows two streams of thought until they flow into the same sea; and that end, that finally encompassing wholeness is not merely peace, not merely freedom and equality for race and sex, it is human civilization, a civilization which must be better, sounder, toward so broad a purpose must we move if wars are to be prevented and the human mind and spirit are to stand erect and fearless in this world."
She disagrees with what was and still remains the central notion of patriarchal ideology that women's nature is biologically, not culturally, determined. She affirms that female otherness is culturally, not biologically constructed, thus evoking the early ideas of 'difference feminism.' She offers many valuable methods in which to escape the oppression of the patriarchal society, and although she is discussing war, the word 'war' can easily be replaced with 'injustice towards women' and still be read the same way, "We can best help to prevent war not by repeating your words and following your methods but by finding new words and creating new methods... to assert 'the rights of all - all men and women - to the respect in their persons of the great principles of Justice and Equality and Liberty." These 'new methods' she discusses involve escaping from the four main oppressors women face in society: poverty, chastity, derision and unreal loyalties. What is interesting it that although first wave feminism strived for equality they advocated gender differences. However, their attempts for equality proved successful in the criminal justice system. By the 1930's women's reformatories were gone and the sex segregation and gender stratification of male and female institutional regimes had become standard throughout the United States. Thus first wave feminists obtained what they strived for, equal treatment between men and women, while still recognizing their differences.

Two occurrences happened in the 1960's and 1970's that renewed interest in women's penal reform: the rise of second wave feminism and the concern with the fact that women's crime rates were growing faster than men's. The 'second wave' of feminism began in the late sixties and had an enormous impact on the way in which women were treated in the United States criminal justice system. In America, second wave feminism rose out of the Civil Rights and anti-war movements in which women, disillusioned with their second-class status even in the activist environment of student politics, began to band together to contend against discrimination. This action of banding together goes directly against what Virginia Woolf preached. She believed it was best for women to gain freedom from unreal loyalties, which includes groups of any kind because a collection of identities will create a power that will then lead to war. Her reasoning proved to be true because it the movement was not a unified one; there were many differences emerging between black feminism, lesbian feminism, liberal feminism, and social feminism. However with the reemergence of feminism in the 1970's, U.S. reformers began to call into question the value of sex-segregated prisons. Despite the fact that these segregated facilities had considerably decreased the abuse (particularly sexual) of female prisoners, they had also worked to uphold damaging gender stereotypes and controlled incarcerated women's opportunities.

Second wave feminists, such as Cynthia Enloe, preached a theory very different from that of first wave feminists. She believed more in equality feminism rather than difference feminism. She sustains that women are not different than men and that women are for example, in fact not all nurturers or opposed to war. She maintains that, like men, women to have violent feelings and are too prone to criminal tendencies. also Second wave feminism had more influence because it was based more strongly in working-class socialism. The slogan 'the personal is political' is representative of the way in which second wave feminism did not just strive to extend the range of social opportunities open to women, but also, through intervention within the spheres of the public, to change their domestic and private lives.

Although second wave feminism brought about a multitude of positive changes to the United States criminal justice system, women's prisons are still burdened with programs and policies that reiterate and endorse "proper" women's roles as "domesticated goddesses." Gender differences in women's and men's prison experiences and access to services and activities generally show an apparent discrimination against incarcerated females. Although the execution of creating co-corrections was thought of as a means to decrease gender discrimination in the criminal justice system, this appears not to have happened.

This then leaves us to the present day situation of females in the criminal justice system. There seems to have recently been an uprising of feminism, one that I believe will be considered the third wave of feminism. In fact Rebecca Walker, daughter of author Alice Walker and godchild of activist Gloria Steinem, published an article in Ms. entitled "I Am The Third Wave," which drew a surprising response. Although significant improvements in terms of legal reforms and employment practices have been made since the 1970's, women continue to face sexist discrimination as well as detrimental stereotypes. While the feminist movements of the past have drastically advanced legal reform and policies, further legal and policy reform is nevertheless required. I believe that the best way to change this system is from the inside. Woman are no longer the 'outsiders' they were in Virginia Woolf's generation. In fact a perfect example of the inside manipulation of the system is with the National Association of Women Judges. Previously the attempt to educate judges on sexism was denied because many people refused to believe that judges could possibly even consider making biased decisions. So these female judges and reformers formed the NAWJ. Their new role as "insiders" then facilitated to start the National Judicial Education Program to Promote equality for women and Men in the Courts (NJEP). This program has since proved to be incredibly successful especially in regards to the outgrowth of the Gender Bias Task Force, which is implemented in 35 states. The success of this program just goes to proves that by becoming part of the 'inside' of the public sphere, women can create better circumstances for their life in the private sphere. Although the change will be a slow and gradual one and may not happen within the period of third wave feminism, it will happen someday. By actively participating inside the public sphere women, rather than the government or society, can control their own private sphere and no longer be submissive to or reliant upon the state.

In conclusion, although the United States criminal justice system seems to be an externally fair organization immersed in the ideas of integrity and justice, it is in reality a perfect example of a seemingly non-discriminatory institution, which turns out to be anything but for women. The policies imposed in the criminal justice system affect men and women in extremely dissimilar manners. Gender plays a significant role in understanding the role females play in the criminal justice system and how the system then responds to and treats these victims and offenders. By looking at the history of women in prison, it becomes apparent that the criminal justice system is another form of patriarchal control, a sexist organization which creates conflict between the private sphere of a woman's life and the public. This control extends far beyond the just incarcerated women, it affects all women. Despite the fact that there have been changes to certain policies and prison regulations further legal and policy reform is still required. In looking at past and present situations as well as the differing feminist perspectives on the justice system, it seems that the one of the best ways to invoke change in the system is to attack it from the 'inside,' which will hopefully and ultimately allow women to equally balance their life in the public sphere as well as their life in the private sphere and gain the equality we so deserve.

END NOTES

MacKinnon, Catherine. 1990 "Legal perspectives on Sexual differences" in Theoretical Perspectives on Sexual Difference, edited by D.L. Rhode. New Haven, CT: Yale University Press
Acker, Joan. 1990. "Hierarchies, Jobs, Bodies: A Theory of Gendered Organizations." Gender and Society 4:139-58
Rhodes, Deborah. 1998 Justice and Gender: Sex Discrimination and the Law. Cambridge, MA : Harvard University Press
Tong, Rosemarie: 1989, Feminist Thought. Boulder CO: Westview Press.
Edwards, Anne. 1997 "Male Violence in Feminist Theory: An Analysis of the Changing Conception of Sex/Gender Violence and Male Dominance." Pp. 13-29 in Women, Violence and Social Control. Atlantic Highlands, NJ: Humanities Press International.
Naffine, Ngaire. Feminism and Criminology. Philadephia: Temple University Press, 1996.
Dahl, Tove Stang. 1986 "Taking women as a Starting Point: Building Women's Law." International Journal of the Sociology of Law 14: 239-247
Jean Elshtain, 1995 Democracy on Trial, Perseus basic Books
In an article entitled, "Antigone's Dilemma: A Problem in Political Membership," Valerie Hartouni likens Elshtain's argument to the situation of Antigone who to a stand against the state in favor of her private concerns of kinship and the divine order. Hartouni
Valerie Hartouni
Valerie Hartouni
Judith Lorber, 2001; Gender Inequality Canada: Wadsworh Group
Jagger, Alison 1993. Feminist Politics and Human Nature. Totowa, NJ: Rowman and Allanhead.
Dobash, Russell. 1996. The Imprisonment of Women. Oxford: Basil Blackwell
Dobash, Russell. 1996. The Imprisonment of Women. Oxford: Basil Blackwell
Naffine, Ngaire. 1996. Feminism and Criminology. Philadelphia: Temple University Press.
Feinman, Clarice. 1981, "Sex-Role Stereotypes and Justice for Women." Pp 383-391 in Women and Crime in America. New York: Macmillan.
New York Times in a review of Virginia Woolf's Three Guineas 1988
Woolf, Virginia. Three Guineas, 1968 Harvest/HBJ Book
Woolf, Virginia. Three Guineas, 1968 Harvest/HBJ Book
Freedman, Estelle. 1974. "Their Sisters' keepers: A Historical Perspective on the Female Correctional Institutions in the United States, 1800-1900"; Feminist Studies
Heidensohn, Frances. 1986. Women and Crime: The Life of the Female Offender. New York: New York University Press
Woolf, Virginia. Three Guineas, 1968 Harvest/HBJ Book
Freedman, Estelle. 1974. "Their Sisters' keepers: A Historical Perspective on the Female Correctional Institutions in the United States, 1800-1900"; Feminist Studies
Cynthia Enloe. Making Sense of the Wars in Afghanistan and Iraq in an American Election Year "What Does a Feminist Curiosity Have to Offer?" (2004)
Belknap, Joanne. 2001"Gender, Crime and Justice"; The Invisible Woman, Canada: Wadsworh Group
Rebecca Walker, 2002. "Ms." Magazine "I Am The Third Wave,"
Van Voorhis, Patricia. 1991. "The Impact of Race and Gender on Correctional Officers' Orientation to the Integrated Environment." Journal of Research in Crime and Delinquency


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